October 17, 2018

In the Preemption Trenches

To most, “federal preemption of state law” is legalese that sounds like it belongs and should stay in a law school classroom. So apologies if you’re bored out of your minds by our post today.

But I think it’s important to talk about real-life consequences when the federal government (Congress or the Trump Administration) tries to preempt – or invalidate – a pro-consumer or pro-safety state law. Those consequences can range from invasion of personal privacy, to financial ruin, to death. California is on the frontlines of “preemption” battles these days, and a good illustration of what’s stake.

NET NEUTRALITY

After the Trump Administration’s Federal Communications Commission (in cahoots with the telecom industry) threw out federal net neutrality rules, California passed its own tough state net neutrality law. The state law “largely mirrors the FCC’s discarded 2015 net neutrality rules,” and in other ways, it goes further. The federal Department of Justice immediately sued, saying California’s law was preempted by federal policy.

However, there are good reasons why DOJ may not succeed. Specifically, what federal policy? There isn't one any more:

[W]hen the FCC dismantled its own authority over broadband ISPs (by rolling back their classification of ISPs as Title II common carriers under the Telecom Act), it ironically killed any authority it might have had to tell states what to do.

“An agency that has no power to regulate has no power to preempt the states, according to case law,” Stanford Law professor Barbara van Schewick said in a statement to The Verge.

In other words, according to the U.S. Constitution, industry can’t have it both ways. If there’s no federal policy or regulation with which a state is in conflict, states can’t be prevented from acting. Oh, the irony.

DATA BREACHES

Similarly, one way an industry can preempt an area and prevent states from acting is to suddenly agree to subject itself to federal regulation. That has the dual effect of setting an ineffective federal public protection standard and preempting states like California from doing anything more. That’s exactly what’s happening in the tech privacy area, where the U.S. Chamber of Commerce and tech companies “recently urged Congress to ‘adopt a federal privacy framework that preempts state law.’”

But California already has strong data breach and privacy laws. As explained by Neema Singh Guliani, senior legislative counsel at the American Civil Liberties Union,

A federal law wiping out — otherwise known as preempting — state protections would be a bad deal for consumers. It would likely put existing consumer protections, many of which are state-led, on the chopping block and leave states bound by a federal law that could prevent additional consumer privacy protections from ever seeing the light of day. State regulators could lose the authority to sue or fine companies that violate their laws. And consumers may even be barred from taking companies to court.

SLEEP DEPRIVED TRUCKERS

There’s nothing scarier than being on the road with a sleep-deprived trucker. Just ask comedian Tracy Morgan. A few years ago, a crash critically injured him and killed his friend on the New Jersey Turnpike when their vehicle was hit from behind by a Wal-Mart truck driver who had not slept for more than 24 hours. (See our coverage here.)

For almost two decades, California has had a meal and rest law for commercial truckers, protecting all motorists from highway accidents. But the American Trucking Association has now petitioned the Federal Motor Carrier Safety Administration to preempt California’s sensible law. (If you’re as appalled as we are, tell them your thoughts here.) The trucking industry wants to prevent the state from having authority in this area. Notably, 20 other states have laws like California’s.

This isn’t even the first time this year that the trucking industry has tried to preempt or eliminate state laws that make sure truck drivers get enough rest. It also recently tried and failed to get a bill through Congress to do this and proponents came uncomfortably close. Let’s hope this latest effort fails too.

FORCED ARBITRATION/#METOO

That all said, there are evidently limits to California’s state leadership and willingness to push back against federal preemption. Consider this cowardly act by California Governor Jerry Brown:

Just as he was signing California’s net neutrality law, he was also vetoing two bills, passed by the California legislature, to assist #MeToo survivors in taking abusers to court. These bills “had high-profile champions, including former Fox News anchor Gretchen Carlson, who won a $20-million settlement against Fox News after she accused the channel’s now-deceased chairman Roger Ailes of harassment and retaliation.”

One of the bills would have kept employers from requiring these disputes to be resolved in private, secret, corporate-controlled forced arbitration – the very same process that Trump has used to try to silence his victims. Brown was unwilling to fight this even though the bill was duly passed by the California legislature, which clearly knew what it was doing. He declared, “states must follow the [federal] Federal Arbitration Act and the Supreme Court’s interpretation of the Act.”

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